OVERVIEW
Assaults on police officers are treated seriously in Hong Kong and the courts often impose immediate custodial sentences following a conviction. The rationale for this is to deter such assaults and to ensure the safety of police officers acting in the due execution of their duties. Charges can be brought under section 36 of the Offences against the Person Ordinance, Cap. 212 or section 63 of the Police Force Ordinance, Cap. 232 and there are implications in relation to sentencing depending upon which provision a person is charged under.
Two statutory routes for an alleged assault on a police officer.
Offences against the Person Ordinance
The relevant limb applies to a person who “assaults, resists, or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer”. The offence may be tried summarily or upon indictment and carries a maximum of two years' imprisonment.
Police Force Ordinance
The relevant limb applies to a person who “assaults or resists any police officer acting in the execution of his duty”. The offence is triable summarily and carries a maximum fine of HK$5,000 and six months' imprisonment.
Elements of Assaulting a Police Officer
An assault or resistance
The prosecution must prove an assault or, where applicable, resistance. Assault includes the intentional or reckless application of unlawful force and conduct which intentionally or recklessly causes another person to apprehend immediate unlawful violence.
The complainant was a police officer
The charge must relate to a police officer. Identification, uniform, the officer's words and conduct, and other evidence may be relevant to what the accused knew or genuinely believed at the time.
The officer was executing a duty
The prosecution must prove that the officer was acting in the execution, or due execution, of duty when the alleged assault or resistance occurred. The lawfulness of an arrest, detention, search or other police action may therefore be central.
The required state of mind
The prosecution must prove the mental element of the alleged assault or resistance. A genuine mistake about the circumstances, including a belief relevant to whether the officer was acting lawfully, must be assessed on the evidence.
The Officer Must Be Acting in the Execution of Duty
This is an essential part of both charges. If the prosecution cannot prove that the officer was lawfully executing a police duty at the material time, the offence is not established. Where the allegation arose during an arrest, detention, entry, search or use of force, the legal basis and manner of that police action must be examined carefully.
The fact that a person disagreed with the officer, questioned the officer's authority or exercised the right to silence does not by itself establish assault, resistance or wilful obstruction. The court must determine what actually occurred and apply the elements of the particular charge.
THE DIFFERENCE BETWEEN THE PROVISIONS
The available sentence depends materially on the charge selected.
| Issue | Section 36 | Section 63 |
|---|---|---|
| Statutory provision | Section 36(b), Cap. 212 | Section 63, Cap. 232 |
| Relevant conduct | Assaulting, resisting or wilfully obstructing a police officer in due execution of duty, or a person acting in the officer's aid | Assaulting or resisting a police officer acting in the execution of duty |
| Mode of trial | Summarily or upon indictment | Summarily only |
| Maximum imprisonment | Two years | Six months |
| Maximum fine | No fine specified in the provision | HK$5,000 |
SENTENCING
Immediate imprisonment is commonly considered.
The Court of Appeal has emphasised the seriousness of assaulting a police officer and the need for public deterrence. Sentence nevertheless remains fact-sensitive. The court considers the conduct, the surrounding circumstances, injury, the accused's role, plea and personal mitigation, as well as the maximum penalty under the provision charged.
HOW MCS CAN ASSIST
Defence advice and representation.
We have represented and successfully defended persons charged with assaulting a police officer and can assist and advise those facing such a charge.
MCS can examine all the relevant prosecution evidence and the precise conduct attributed to the accused. We can advise and represent clients from investigation and interview through trial, plea and sentence.